The Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, held in its reported opinion dated August 27, 2020 in a Maryland medical malpractice case: “Viewing the evidence in the light most favorable to Ms. Thomas, Dr. Shear negligently placed a clip on her right ureter during the 2000 procedure. The plaintiff’s expert testimony establishes that, at that time, the clip was causing narrowing of the right ureter, which led to at least some pressure building in Ms. Thomas’s kidney. Plaintiff’s experts did not demonstrate that the injury was not committed in 2000; to the contrary, they proved that the harm to Ms. Thomas was contemporaneous with the negligence. Consequently, we are persuaded that Ms. Thomas suffered an “injury” in 2000, even though she may not have experienced pain at that time. Accordingly, we hold the circuit court correctly granted Dr. Shear’s motion for summary judgment because she failed to file her claim by 2005, or within “[f]ive years of the time the injury was committed.” CJP § 5-109(a)(1).”
CJP § 5-109
The statute of limitations for Maryland medical malpractice lawsuits against health care providers is set forth in CJP § 5-109, which states: “An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider . . . shall be filed within the earlier of: (1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered.”
An injury may not coincide always with the date of an allegedly wrongful act or omission. “Injury” occurs when the allegedly negligent act was first coupled with harm. This principle opens the door for claims arising from an allegedly negligent act that was more than five-years past, even if the injury—or cognizable legal harm—does not occur for many years. The five-year period thus begins to run from the time the “injury” is determined to have occurred. Furthermore, the five-year maximum period under the statute will run its full length only in those instances where the three-year discovery provision does not operate to bar an action at an earlier date, and this is so without regard to whether the injury was reasonably discoverable or not.
The Maryland Appellate Court stated, “To conclude, we emphasized that the “five year period begins to run when injury (or ‘damages’) first arises, and not when all damages resulting from the physician’s negligence have arisen … a patient could suffer an “injury” from a negligent misdiagnosis, when (1) he or she experiences pain or other manifestation of an injury; (2) the disease advances beyond the point where it was at the time of the misdiagnosis and to a point where (a) it can no longer effectively be treated, (b) it cannot be treated as well or as completely as it could have been at the time of the misdiagnosis, or (c) the treatment would entail expense or detrimental side effects that would not likely have occurred had treatment commenced at the earlier time; or (3) the patient dies.” This list is not exhaustive: “the overriding inquiry in all cases must be when the patient first sustained legally compensable damages” because the injury occurs “when legally compensable tort damages first occur, regardless of whether those damages are discoverable or undiscoverable.”
In the Maryland medical malpractice case it was deciding, the Maryland Appellate Court stated: “we reject Ms. Thomas’s contention that Dr. Shear was not entitled to summary judgment because he did not sustain his burden of proving that she sustained an injury in 2006 attributable to his negligence. Ms. Thomas misconstrues the burdens required of each party to both sustain and defend the cross-motions for summary judgment under CJP § 5-109. As the health care provider, Dr. Shear had the “burden of pleading and proving that the action is barred under the five-year provision [of CJP § 5-109(a)]” … [a]nd, as the party moving for summary judgment, the burden was upon Dr. Shear to demonstrate an absence of material fact and that he was entitled to judgment as a matter of law … Dr. Shear demonstrated in his motion that he was entitled to judgment as a matter of law because the surgery that Ms. Thomas alleges caused her harm occurred in May 2000, and the lawsuit was not filed in the underlying case until 2016—eleven years outside the controlling five-year limitations period. CJP § 5-109(a).”
Source Thomas v. Shear, No. 2669 September Term, 2018.
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